United States v. Louis Goldstein, and Selma Goldstein , 502 F.2d 526 ( 1974 )

OPINION OF THE COURT

WEIS, Circuit Judge.

Whether an indictment for a misdemeanor may be amended to correct a material variation between allegata and probata is a question of first impression in this circuit. In a thoughtful opinion the district court held that an amendment was permissible, but after careful consideration, we feel obliged to come to a contrary conclusion, and we therefore reverse.

The defendant, Louis Goldstein, was indicted by a grand jury on three counts. Counts I and III charged that defendant filed false returns for the years 1964 and 1966 in violation of 26 U.S.C. § 7206(1). The petit jury found Goldstein not guilty on these counts.

Count II charged in part that defendant “ . . . by reason of such income . was required by law following the close of the calendar year 1965 and on or before April 15, 1966 to make an income tax return to the District Director of the Internal Revenue . . he did willfully and knowingly fail to timely make said income tax return »

At the trial it was established that Goldstein had no legal duty to file his 1965 tax return until May 7, 1966, and the trial judge so submitted the case to the jury, in effect allowing an amendment to the indictment. The jury was instructed that the state of mind of the defendant as it might bear on the element of willfulness was material during the period of time leading up to May 7, 1966. After the verdict of guilty on this count, the defendant filed post-trial motions for acquittal and arrest of judgment, asserting a fatal variance between the date set out in the indictment and that established by the government’s proof.

The evidence in the district court disclosed that on April 15, 1966, the date on which the indictment alleged that defendant had a duty to file his income %ax return, he did in fact submit a Form 2688 requesting an extension of time. This form was returned to Goldstein by the District Director of the Internal Revenue Service on April 27, 1966 bearing a notation that the request was rejected because the defendant’s social security number had not been included, but allowing resubmission within ten days if he wished to pursue the matter. Since the defendant did not follow up, the district court found that under the regulations then applicable, the return became due on May 7,1966.

While the rule is generally stated that an indictment cannot be “amended,” it may be more precise to say that a change in the indictment which is substantial or material, and not merely one of form, is not permissible. 8 Moore’s Federal Practice — Cipes, Criminal Rules ff 7.05 [1]. Hence, the first question to be decided here is whether the alteration in dates from April 15 to May 7, 1966 was material.

Ordinarily, a mere change in dates is not considered a substantial variation in an indictment, but an exception exists when a particular day may be made material by the statute creating the offense. As stated in 4 Anderson, Wharton’s Criminal Law and Procedure § 1775, “When time is of the essence of the offense, it must be correctly alleged and must be proved as laid. . . . ” (footnote omitted). “As has been previously stated, when time is an essential ingredient of the offense charged, it must be laid with exactitude in an indictment, and in such cases must be proved as laid.” 5 id. § 2062. (footnote omitted).

The statute involved here illustrates this exception to the general rule. There was no duty imposed on the defendant to file a return before April 15, and an indictment alleging an offense in failing to submit a return on April 10, for example, would not state a crime. An omission to perform an act by April 15 is designated a criminal offense, but only on that date does the crime occur. Conduct and time are thus inextricably intertwined. See United States v. Figu-rell, 462 F.2d 1080 (3d Cir. 1972). By way of contrast, a bank robbery is a criminal offense at all times, regardless of the date on which it takes place. In that instance a variance of a few days between the dates established by the indictment and proof would be a matter of form and not of substance. The difference between these two situations is apparent.

In requiring an accurate allegation of time, we do not rely on a merely mechanical application of what may seem to be an unduly restrictive common law rule. An indictment is the product of the deliberations of a grand jury, and a brief review of its purposes may serve to explain the policy behind strict adher-enee to the language used in presenting an accusation of that body.¹

Two of the functions of an indictment are to apprise the defendant of the charge of which he is accused and to provide protection against reprosecution should an acquittal result. The defendant here does not and cannot claim prejudice on either of these elements. But there is a third and very important aspect of the indictment process, and that is the duty of the grand jury to shield a citizen from unfounded charges and to require him to appear in court in defense, only if probable cause has been found by that independent body. Until that prerequisite has been met, the accused is not properly before the court. Thus, a conviction of a defendant cannot be upheld on the basis of facts not found by and perhaps not even presented to the grand jury which indicted him. Russell v. United States, 369 U.S. 749, 770, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962).

This screening process of the grand jury is a substantial benefit to an accused person and in the case of serious crimes is constitutionally guaranteed. Its importance has been emphasized by such cases as Ex parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849 (1887); Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960); and Russell v. United States, supra.

The application of the principle was explained in United States v. De-Cavalcante, 440 F.2d 1264 (3d Cir. 1971), where this court stated that we must test to see whether there is reasonable assurance from the face of the indictment that the grand jury found probable cause on each of the essential elements which underlie the verdict of the petit jury.

One of the crucial factors which must be present to convert late filing into a criminal offense is willfulness. While this term has been generally interpreted to mean a voluntary, intentional violation of a known legal duty, the Supreme Court has emphasized that bad faith or evil motive must exist in tax cases. As Justice Blackmun said in United States v. Bishop, 412 U.S. 346, 361, 93 S.Ct. 2008, 2017, 36 L.Ed.2d 941 (1973), “[t]he Court’s consistent interpretation of the word ‘willfully’ to require an element of mens rea implements the pervasive intent of Congress to construct penalties that separate the purposeful tax violator from the well-meaning, but easily confused, mass of taxpayers.”

However, it is obvious from the face of the indictment here that the grand jury was not aware of the very material fact that the defendant had applied for an extension of time and that as of April 15 he was not required to file his return. And so it was that in focusing on the critical elements of knowledge and bad faith, the grand jurors weighed state of mind on the wrong day and in the wrong circumstances. We can only speculate as to what would have happened had they been told of the request for an extension and the reason for its denial.

Whether willfulness and knowledge would have been found to exist on May 7, 1966 is far from clear because then, the grand jurors would have been required to consider if the failure to resubmit the Form 2688 or file the tax return was caused by inadvertence, lack of knowledge of the new due date, or something other than bad intent. While the due date of April 15 is well-known to the general public, the same cannot be said of the time for filing the return after rejection of a request for extension. The form itself advised that there could be a resubmission within ten days but did not state when the return would be due if the extension request was not refiled. Indeed, it was only after a careful review of the statute and regulations in effect in 1966 that the district court concluded that the due date for the return was May 7, 1966.² Obviously, the government would have had a heavier burden to establish willfulness and knowledge as of May 7 than it would have had for April 15, 1966 in the absence of an extension.

We agree with the district court’s conclusion that the conflict in dates is not a mere formality or an innocuous difference of unimportant data but is, rather, a matter of substance. The circumstances which existed on April 15 on which the grand jury concentrated were quite different from those on May 7 to which the petit jury devoted its attention.³ The indictment indeed had been amended — a procedure clearly not permitted when a grand jury action is constitutionally required. United States v. Williams, 412 F.2d 625 (3d Cir. 1969); United States v. Critchley, 353 F.2d 358 (3d Cir. 1965).

Ex parte Bain, supra, and Stirone v. United States, supra, considered the inviolability of an indictment against the backdrop of the Fifth Amendment guarantee that:

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment or indictment of a Grand Jury. . . . ”

The reasoning in those cases was that since the only way that the accused could be brought into court was by indictment of a grand jury, only that body could amend its charges.

Russell v. United States, supra, decided a case of a misdemeanor which by statute required the indictment of a grand jury. No constitutional guarantee was there involved, but the court, nevertheless, applied the same standards set out in Ex parte Bain, supra, and Sti-rone, supra, holding that Congress had decided that only a grand jury in that instance could determine whether a person should be held to answer in a criminal trial.

The constitutional guarantee does not apply in the case sub judice since the offense of failing to timely file an income tax return is not considered a capital or infamous crime.⁴ It could have been brought by information.⁵

Fed.R.Crim.P. 7 expressly grants the court authority to permit amendment of an information before verdict. The government argues that had this offense been prosecuted by information, it could have been amended and therefore similar liberality should apply to the indictment. It claims support also in Fed.R. Crim.P. 52, which states that defects or variances which do not affect substantial rights should be disregarded. We do not find these arguments persuasive, and it is on this point that we differ with the district court.

Fed.R.Crim.P. 7 states specifically that an information may be amended but, in what is a significant omission, makes no such provision for an indictment — any indictment. This is not a mere oversight, and as a reading of the rule will show, the committee that drafted it was conscious of the distinction between those offenses where indictment was required and those in which it was optional. Subdivision (e) which provides for amendments is limited to in-formations, and we follow the rule as it reads.⁶

Rights of an accused in a criminal proceeding which are valuable to him should not be limited or taken away by construction. Where there is doubt, it should be resolved in favor of the defendant.

Furthermore, it is pertinent to note that there are certain adyantages which the government obtains by use of the indictment process. The prosecution is afforded the benefit of discovery through use of process for compelled appearances of witnesses before the grand jury. And in the trial court there is that subtle, though undeniable, stigma attached to a defendant who has been indicted by an impartial grand jury. An information, which is merely an accusation by the prosecuting attorney, an obvious partisan in the trial proceeding, would have less effect on the petit jury. Having chosen to utilize the indictment process, fair dealing would require that the government assume the burdens as well as the benefits.

In accord with our holding is United States v. Fischetti, 450 F.2d 34, 39 (5th Cir. 1971), cert. denied, 405 U.S. 1016, 92 S.Ct. 1290, 31 L.Ed.2d 478, where the Court of Appeals succinctly stated, “While it is true that the crimes alleged in counts 2, 3 and 4 are misdemeanors, the Government chose to present the case to the grand jury and secure an indictment. Having so elected, it is bound by the principles governing indictments.”

The district court erred in refusing the motion for arrest of judgment, and accordingly its judgment will be reversed.

1 . In Rex v. Wilkes, 4 Burr, 2527, 2569 (1770), a misdemeanor case, Lord Mansfield remarked, “There is a great Difference between amending Indictments, and amending Informations. Indictments are found upon the Oaths of a Jury; and ought only to be amended by themselves:' But Informa-tions are as Declaratione in the King’s Suit. An Officer of the Crown has .the Right of framing them originally: and may, with Leave, amend, and in like Manner as the-Plaintiff may do.”

2 . In its opinion, the district court said:

“If the District Director considered Mr. Goldstein to be in default on April 27, 1966, when he signed and returned Form 2688, the permission for resubmission would be meaningless. Accordingly, I conclude that the District Director’s intent must have been to extend the period for the filing of a return or a renewed application for extension until May 7, 1966.”

Accordingly, the due date for filing the return could not have been earlier than May 7, 1966.

3 . Cf. United States v. Doelker, 327 F.2d 343 (6th Cir. 1964). There, the question of amendment was not raised in the trial court, and the holding that the variance was not substantial must be considered dictum. Furthermore, in that case, an extension had been granted to a specified date, and there could be no question of the knowledge of the defendant as to the correct time for filing.

4 . Infamous crimes have been defined as crimes for which incarceration in a penitentiary may be imposed. Mackin v. United States, 117 U.S. 348, 6 S.Ct. 777, 29 L.Ed. 909 (1886). 18 U.S.C. § 4083 limits confinements to a penitentiáry for any term in excess of one year. Fed.R.Crim.P. 7(a) provides that an offense which may be punished by imprisonment for more than one year shall be prosecuted by indictment. Any other may be prosecuted by indictment or information.

5 . 26 tT.S.C. § 7203 provides that for a violation, there may be imposed a fine of not more than $10,000.00 and/or imprisonment for not more than one year.

6 . The original Committee Note to Subdivision (e) of Rule 7 observes, “ [t] his rule continues the existing law that, unlike an indictment, an information may be amended . . . ” (Citation omitted). 8 Moore’s Federal Practice — Cipes, Criminal Rules f 7.01 [2], Cf. Ledbetter v. United States, 170 U.S. 606, 609-610, 18 S.Ct. 774, 775, 42 L.Ed. 1162 (1898) where the Court said, “We have no disposition to qualify what has already been frequently decided by this court, that where the crime is a statutory one it must be charged with precision and certainty, and every ingredient of which it is composed must be clearly and accurately set forth, and that even in the cases of misdemeanors the indictment must be free from all ambiguity, and leave no doubt in the minds of the accused and the court of the exact offense intended to be charged.” (Citations omitted).